Uploaded: Wed, Mar 17, 2010, 11:53 am
Momentum grows in threat to sue school district
Open-government crusader Peter Carpenter reiterates intention to sue over closed-door decision
The district attorney will not go to battle for Peter Carpenter, the open-government crusader and Atherton resident, who is trying to force the Sequoia Union High School District to bring to open session a decision that the board made behind closed doors.
Deputy District Attorney Albert A. Serrato, in a recent message to Mr. Carpenter (referring to Mr. Carpenter as Mr. Peterson), informed him the Sequoia board did not violate "either the spirit or the letter of the law" when it decided, in a 4-1 closed-session vote on Feb 24, to limit the search for a new superintendent to district employees only.
Patrick Gemma, who currently heads the district, has announced his intention to retire in June. Assistant Superintendent James Lianides, who Mr. Gemma hired in 2008, is considered a front runner to replace him.
Mr. Carpenter argues that the state's open-meeting law, the Brown Act, allows an agency to discuss matters of individual employees in closed session but not matters of process such as recruitment criteria.
Mr. Carpenter posted a message today, March 17, that he will sue the Sequoia district over the matter. To avoid a legal battle, the board has "the very simple option of rescinding your closed session motion decision and then properly (agendizing) this matter for a public meeting," Mr. Carpenter said.
James Fox, the district attorney, told Mr. Carpenter in a separate message (also posted on Town Square) that he agreed with Mr. Serrato, but then went on to elaborate not on whether recruitment processes can be decided behind closed doors, but whether the district acted appropriately in limiting the search to current employees.
Mr. Fox suggested that Mr. Carpenter speak to the Sequoia board in public session.
In his reply to Mr. Fox, Mr. Carpenter said he will "seek the wisdom of the courts since you are unwilling to interpret the law in the interest of the citizens and instead have chosen to protect secrecy by elected officials."
Board member Chris Thomsen dissented in the Feb. 24 decision.
Posted by Peter Carpenter
a resident of Atherton: Lindenwood
on Mar 17, 2010 at 4:52 pm
The saga continues - my email this date:
Dear President Martinez and Fellow School Board Members,
Be advised that the decision of the Board as to the scope of the search for a new superintendent, having been made in closed session, is in violation of the Brown Act and California Code 54957.1.
This action was confirmed by your President and by your own lawyer, John Beiers: "On February 24, the Board met in closed session under Public Employee Appointment: Superintendent. At the conclusion of that session, the Board announced a decision, on a 4-1 vote, to essentially confirm the original public direction to continue the selection process in house before contemplating an outside search." Mr. Beiers further states that "One should surmise from the vote taken by the Board that the Board discussed the strengths and weaknesses of internal candidates and arrived at a conclusion that it needed not to conduct an external search."
If that was indeed what transpired, then the Board had the obligation to report the closed session conclusion 'that it needed not to conduct an external search' in public session and then to vote on the motion to do a closed search in such a public session. While any purported discussions regarding specific individuals would fall under the personnel exception the subsequent motion, made without any reference to said individuals, to conduct a closed search is not a permitted exception to the requirement that the public's business be conducted in public and with the public being given the opportunity to comment.
The personnel exemption in the Brown Act applies ONLY to actions regarding a SPECIFIC individual and not to decisions regarding general personnel policies. Thus your closed session action is a violation of your public trust and an insult to the citizens of the district. The citizens elected you to do our business; we did not elect you to do that public business in secret.
Since this decision has not been rescinded and then agendized for a public meeting, I will file suit against the School District and each Trustee. The Court will also be asked to 1) issue a temporary restraining order prohibiting the School District from taking any action pursuant to this illegal motion, including any action to search for or select a new superintendent, until this matter can be fully adjudicated or has otherwise been resolved, 2) void the closed door action to pursue a closed search and 3) pay all of my legal expenses incurred until such time as this matter is resolved. (REMEDIES AND SANCTIONS - Individuals may file civil lawsuits for injunctive, mandatory or declaratory relief, or to void action taken in violation of the Act. 54960; 54960 Attorneys' fees are available to prevailing plaintiffs.)
To assist you in deciding to reverse course and to address this issue in open session prior to my filing a civil suit, let me quote from the recent correspondence from the San Mateo District Attorney which clearly confirms, contrary to the DA's interpretation but consistent with the later cited California Attorney General's opinion, that the personnel exception allowing closed session action applies ONLY to personnel actions which relate to a SPECIFIC individual:
"These cases interpret this exception rather broadly, finding that it extends to "all employer consideration of an employee, up to (but excluding) 'discipline' or 'dismissal' of the employee." Duvall v. Board of Trustees (2001) 93 Cal.App.4th 902, 909. The Duvall court found that "evaluation" encompasses "consideration of the criteria for such evaluation, consideration of the process for conducting the evaluation, and other preliminary matters, to the extent those matters constitute an exercise of [the board's] discretion in evaluating a particular employee." Ibid.
Opinions of the Attorney General further support the broad parameters of the personnel exception. "Opinions of the California Attorney General have consistently interpreted the personnel exception's use of the term 'employment' broadly.... [T]he Attorney General interpreted the term 'employment' to include 'all personnel matters relating to an individual employee at executive sessions and not simply matters relating to initial employment or final discharge,' thereby permitting a closed session to evaluate a school superintendent's performance." Travis v. Board of Trustees(2008) 161 Cal.App.4th 335, 344-5."
And here is guidance from the California Attorney General:
"The Brown Act authorizes a closed session "to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee.
The purpose of this exception commonly referred to as the "personnel exception" is to avoid undue publicity or embarrassment for an employee or applicant for employment and to allow full and candid discussion by the legislative body; thus, it is restricted to discussing individuals, not general personnel policies."
Frankly, I am at loss as to why the decision to do a closed search was done in closed session - what was there to hide, which individuals were you ostensibly attempting to protect? Was this simply a procedural error or was it done intentionally to hide something from the public? Note that if it were an intentional act to "deprive the public of information which the member knew or had reason to know the public was entitled to receive" then that would be cause for criminal action. Will not a closed search be inherently discriminatory if the internal applicant pool is not representative of the community that you serve?
Should the School District wish to avoid the expense and the extensive discovery and time consuming depositions which may be required in conjunction with a civil suit, you have the very simple option of rescinding your closed session motion decision and then properly agendized this matter for a public meeting.
Your attorney states:" I can tell you based on personal experience with this Board, that Brown Act compliance is important to them".
I challenge you to meet that standard.
My motivation in this matter derives from the beautifully worded Preamble to the Brown Act:
"In enacting this chapter, the Legislature finds and declares that the public commissions, boards,
and councils and the other public agencies in this State exist to aid in the conduct of the people's
business. It is the intent of the law that their actions be taken openly and that their deliberations
be conducted openly."
"The people of this State do not yield their sovereignty to the agencies which serve them. The
people, in delegating authority, do not give their public servants the right to decide what is good
for the people to know and what is not good for them to know. The people insist on remaining
informed so that they may retain control over the instruments they have created."
The people reconfirmed that intent fifty years later at the November 2004 election by adopting Proposition 59, amending the California Constitution to include a public right of access to government information:
"The people have the right of access to information concerning the conduct of the people's
business, and, therefore, the meetings of public bodies and the writings of public officials and
agencies shall be open to public scrutiny."
While I may not prevail on this matter, I can assure you that to continue down this road will be very expensive and time consuming for the School District and will result in a significant amount of negative publicity - is it worth it, what are you hiding?
Please do the simple thing and rescind this closed session motion.
Peter F. Carpenter
an interesting footnote - the above email was rejected by the recipients server as I have been blacklisted by the school district's email server. A very interesting response given their stated interest in citizen input.
I suggest that those of you who are so motivated might send them the above message with whatever comments you wish.
email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com,
I then sent this email:
Dear School Board members,
The below email was sent to you from my normal gmail address and was uniformly rejected with the comment - The error that the other server returned was: 554 554 5.7.1 Blacklisted by dbl.spamhaus.org. The same email has been sent to you from another of my email addresses and was accepted.
Clearly you have decided that you do NOT want citizen input. I am amazed at your arrogance.
I also think you may end up getting copies from other citizens who share my outrage at your behavior.